Mediation in Germany: Finding the right balance between regulation and self-regulation

Abstract

This chapter explores the current legal framework of mediation in Germany. The Mediation Law of 2012, implementing the Mediation Directive, now regulates a variety of important aspects, but many provisions governing mediation are found in other statutes as well. It may be said that the law has a broad scope but little content: On the one hand, it establishes a uniform system for both domestic and cross-border mediation; on the one hand, it confines itself to regulating minimum requirements, especially as far as the structure of the mediation process, default rules for mediation agreements and the enforcement of mediated settlements are concerned. This goes back to the idea that on the one hand, mediation puts forward the autonomy of the conflicting parties and should therefore not be pressed into a rigid procedure, and on the other hand, there is a need for reliable rules for the interplay between mediation and court proceedings. One German particularity is the existence of an in-court mediation scheme conducted by a "conciliation judge" who is not entitled to decide the case, which has been quite successful.